United States District Court, E.D. California
ORDER AND FINDINGS & RECOMMENDATIONS
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
Petitioner
is a state prisoner incarcerated under the authority of the
California Department of Corrections and Rehabilitation, who
proceeds pro se with a putative petition for writ of habeas
corpus filed pursuant to 28 U.S.C. § 2254, and a request
to proceed in forma pauperis.
This
action is referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302(c). For the following reasons,
petitioner's request to proceed in forma pauperis is
granted but the undersigned recommends the dismissal of this
action for lack of jurisdiction.
Examination
of the in forma pauperis application demonstrates that
petitioner is unable to afford the costs of suit.
See 28 U.S.C. § 1915(a). See ECF No.
2; see also ECF No. 4 (Inmate Trust Account
Statement). Accordingly, plaintiff's request to proceed
in forma pauperis will be granted.
Under
Rule 4 of the Rules Governing Section 2254 Cases, this court
is required to conduct a preliminary review of all petitions
for writ of habeas corpus filed by state prisoners. Pursuant
to Rule 4, this court must summarily dismiss a petition if it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
district court.”
In the
instant case, petitioner challenges his 2005 criminal
conviction and 27-year sentence imposed by the Solano County
Superior Court[1] on the ground that the judgment was
effectively vacated by an August 2013 default judgment
entered against the State of California by the
“Shaykamaxum Supreme/Grand Court of Atlan Amexem Al
Moroc N.W., A Judicial Tribunal Court of Record.” ECF
No. 1 at 36. Petitioner asserts that the California Attorney
General (AG) failed to respond to a June 2013 summons and
complaint in the tribal action, resulting in the default
judgment. Id. at 8, 21-2. Thereafter the AG failed
to specifically perform the terms of the judgment, despite
being served with a certified copy of the tribal court
judgment which, inter alia, directs the State of California
to “rescind and/or revoke any and all liens, levies,
deficiencies, garnishments and distraint warrants”
against petitioner. Id. at 21, 37. Petitioner
asserts that this court is now required to enforce the
“contractual agreement” created by the entry of
default against the State of California by “revers[ing]
and vacat[ing] the void judgment entered by the [Solano
County] Superior Court for lack of jurisdiction in the first
instance sua sponte.” Id. at 21.
This
case is not petitioner's first effort to overturn his
state criminal conviction and sentence based on the tribal
court judgment. Petitioner recently sought a writ of mandate
from this court directing his discharge from state custody
based on the 2013 tribal judgment. That case was dismissed on
October 1, 2019 for lack of jurisdiction, on the ground that
federal courts are not authorized to issue writs of mandamus
to state courts or officials. Dismissal was “without
prejudice to filing an application for writ of habeas corpus
in a new action.” See Jolivette v. Superior
Court, Case No. 2:19-cv-540 TLN EFB P (ECF Nos. 8, 13).
Petitioner filed the instant petition a few weeks later, on
October 28, 2019.
Previously,
petitioner sought to enforce the tribal court default
judgment against the State of California by registering it in
various federal district courts. Petitioner registered the
judgment in the United States District Court for the District
of Nevada in November 2013 (Jolivette v. People,
Case No. 2:13-ms-00091 (D. Nev.)). In January 2014, he
registered the judgment in the United States District Court
for the Northern District of California (Jolivette v.
People, Case No. 3:14-mc-80001 RS (N.D. Cal.)), then
made it a matter of public record at the San Francisco
Assessor-Recorder's Office. Petitioner also sought to
register the judgment in this United States District Court
for the Eastern District of California but the effort failed
when the case was dismissed for lack of subject matter
jurisdiction in January 2014 (Jolivette v. People,
Case No. 2:13-cv-01882 LKK DAD (E.D. Cal.)).
Even
assuming that “Shaykamaxum” is a legitimate
tribal court[2] and/or that petitioner qualifies as a
reservation Indian, it is well established “that States
have criminal jurisdiction over reservation Indians for
crimes committed . . . off the reservation.” Nevada
v. Hicks, 533 U.S. 353, 362 (2001) (citing Mescalero
Apache Tribe v. Jones, 411 U.S. 145, 148-49 (1973)). The
adjudication of such crimes rests in the state courts,
subject to review by the federal courts. Tribal courts have
no subject matter jurisdiction to construe, alter or
overrule, a state criminal conviction or sentence; nor may
they obtain jurisdiction over a state merely by serving
process on its official representative.
Moreover,
petitioner's framing of this as a habeas corpus matter
does not alter the fact that he seeks a remedy that is
unavailable: a federal court mandate directing the state
courts to vacate his conviction and sentence. As another
judge in this court previously ruled:
In a mandamus action, the court can only issue orders against
employees, officers or agencies of the United States. See 28
U.S.C. § 1361. Federal district courts are not
authorized to issue writs of mandamus to direct state courts,
state judicial officers, or other state officials in the
performance of their duties. See Demos v. U.S. District
Court, 925 F.2d 1160, 1161 (9th Cir. 1991) (“We
further note that this court lacks jurisdiction to issue a
writ of mandamus to a state court.”); Clark v.
Washington, 366 F.2d 678, 681 (9th Cir. 1966)
(“The federal courts are without power to issue writs
of mandamus to direct state courts or their judicial officers
in the performance of their duties[.]”). Therefore, the
court cannot afford petitioner the relief he requests.
Jolivette v. Superior Court, Case No. 2:19-cv-540
TLN EFB P (ECF No. 8 at 2, fn. omitted).
Finally,
and most fundamentally, the federal habeas corpus statute
does not provide any basis for jurisdiction here because
petitioner does not seek to overturn his state court judgment
on grounds “that he is in custody in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). To the contrary, petitioner claims
that he is in state custody in violation of a tribal
judgment. A federal court sitting in habeas has no authority
to disturb a state court judgment on grounds related to
tribal law, tribal judgments, or tribal
contracts.[3] The petition does purport to assert rights
under “United States Constitution, Article X, § 1,
‘Enforcement of Contractual Obligations.'”
ECF No. 1 at 10. But there is no such article and section.
Article I, § 10 provides that no state shall pass any
law that impairs the obligation of contracts. If this is what
petitioner meant, it does not help him. A criminal conviction
is not a law passed by a state within the meaning of Article
I, § 10. No provision of the U.S. Constitution,
including the full faith and credit clause, [4] supports the
theory that a state conviction can be unconstitutional
because inconsistent with a tribal court judgment. Because
petitioner has not identified any violation of federal law as
the basis for his claim, the petition is not cognizable under
§ 2254.
Because
it is plainly apparent from the face of the petition that
this court lacks jurisdiction, the ...